Private Foreign Policy

Abstract: Microsoft President Brad Smith recently analogized Microsoft to a “Digital Switzerland.” This moniker captures the role that U.S. technology companies have increasingly taken on with respect to cybersecurity and privacy: they are acting like states and running their own foreign policies, and they are setting themselves as neutrals with respect to existing national authorities, including the United States. U.S. tech companies are not the first super-empowered private companies, but they have numerous features that set them apart from prior private powers like the Dutch East India Company or more recent examples like ExxonMobil. This article first provides an account of how the relationship between U.S. tech companies and governments has evolved over time. By breaking down the “Digital Switzerland” idea, the article then explores the extent to which and how the companies differ from the powerful private interests of earlier eras, and it concludes by analyzing the implications of the companies’ role for governance and for individuals going forward.

About the Speaker: Kristen Eichensehr is an Assistant Professor of Law at UCLA School of Law. She writes and teaches about foreign relations, separation of powers, cybersecurity, and national security law. Before joining the UCLA faculty, Eichensehr clerked for Chief Judge Merrick B. Garland of the U.S. Court of Appeals for the D.C. Circuit and for Justices Sandra Day O’Connor and Sonia Sotomayor of the Supreme Court of the United States. Eichensehr also served as Special Assistant to the Legal Adviser of the U.S. Department of State and practiced at Covington & Burling LLP. Eichensehr received her J.D. from Yale Law School, where she served as executive editor of the Yale Law Journal. Eichensehr is a term member of the Council on Foreign Relations, a former visiting fellow at the Hoover Institution, and an affiliate scholar at the Center for Internet and Society at Stanford Law School. She is a frequent contributor to and member of the editorial board of the national security blog, Just Security.